Shri Sant Eknath Maharj’s descendant Narayanbuva Gosavi wasgiven an exclusive right to carry the Palki and Padukas of Sri Sant EknathMaharaj.
The Palki was to be carried from Paithan to Pandharpur at the time ofAshadi Ekadashi. Narayanbuva died in 1951, leaving behind his widow, Smt.Laxmibai Krishnabuva. Narayanbuva’s brother also died leaving behind his widow,Smt. Gopikai.Narayanbuva vested the right to carry Palki and Padukas toSmt. Laxmibai. Respondents who were also the descendent of Sri Sant EknathMaharaj, issued notice on 6.
05.1971 upon Shri Vasant Bhagwantrao Pandav,stating that he should not give his 8 years old son Raghunath to Smt. Laxmibai.Respondent filed a civil suit against Vasant BhagwantraoPandav, Laxmibai and Gopikabai, restraining them to effect the adoption ofRaghunath, which was later on withdrawn. On 11.05.1971, Smt.
Laxmibai adopted Raghunath afterperforming all necessary ceremonies conducted in front of the crowd. Even theprocess of physical give and take took place between Vasant Bhagwantrao Pandavand Smt. Laxmibai. Adoption deed was also signed,executed and registered on thesame day, which was duly signed by seven witnesses.
A priest performed theceremonies and several photographs were taken on that occasion. Smt. Laxmibai and Gopikabai filed a Suit against theRespondents for causing disturbance and creating hindrances in the performanceof duties of the Appellants with respect to the Palki and Padukas. The suit wasfiled seeking perpetual injunction, preventing respondents from causing anymore obstruction.
The trial court held the adoption valid based on theevidences such as adoption deed, witnesses, photographs and performance ofceremonies. The Court observed that there was no custom regarding prohibitionof male child from outside. Raghunath was entitled to inherit the properties ofSmt. Laxmibai after her death. Respondents to which the Appellants filed cross appeal madethe Civil appeal.
The First Appellate Court reversed the decree of Civil Court,when respondents proved that there exist a custom prohibiting Smt. Laxmibai toadopt a child from outside family. Aggrieved by this order, appeal was made inHigh Court, which was dismissed subsequently.
Issues raised in this case aretwofold- · Whether the adoption of a child in a family (whichhad been done four times in 375 years) is sufficient to be named as custom. · Whether mere technicality can defeat thelegality and validity of the adoption documents. · Whether the adoption deed and ceremoniesperformed were legal and valid.The appellate courts have categorically held that in past375 years, four children were adopted only within the family and not from theoutside.
Thus, the appellate court made a grave mistake by interpreting suchevent as some kind of a custom. The SC observed that adoption of only fourchildren in the past almost four centuries, does not constitute a custom orestablishes anything related to custom. Even the counsel on behalf of therespondents never cross-examined the photographer who was present and clickedpictures at the time of adoption.
Since no cross-examination took place withrespect to any doubt regarding the genuineness of adoption or photographs. Inthe absence of such, the appellate court cannot draw any inference, even thoughthe photographer proved the validity of adoption and photographs. Hence, thejudgement and decrees of appellate court is liable to be set aside andjudgement of trial court deserves to be re-established. Section 3(a)1states that: “The expressions, ‘custom’ and ‘usage’ signify any rule which, havingbeen continuously and uniformly observed for a long time, has obtained theforce of law among Hindus in any local area, tribe, community, group or family:Provided that the rule is certain and not unreasonable or opposed topublic policy: andProvided further that, in the case of a rule applicable only to afamily, it has not been discontinued by the family.” Custom is a rule, which is followed by the family, and hasobtained the force of law, owing to continuous and prolonged use in the family.It has the authority to overrule the personal laws, but not statutory law. Suchcustom needs to be ancient, uniform, certain, continuous and compulsory. Burdenof proof rests on the party who relies upon such custom.
The SC focused on the case “Dr. Surajmani Stella Kujur vs.Durga Charan Hansdah”2,the SC passed the judgement holding that Custom needs to be construed strictly.The Party relying upon a custom, is obliged to establish it by way of clear andunambiguous evidence. Reliance was placed on the case “Ramalakshmi Ammal Vs.Sivanatha Perumal Sethuraya3,it was held, “It is essential thatspecial usage, which modifies the ordinary law of succession is ancient andinvariable; and it is further essential that such special usage is establishedto be so, by way of clear and unambiguous evidence. It is only by means of suchevidence, that courts can be assured of their existence, and it is also essentialthat they possess the conditions of antiquity and certainty on the basis ofwhich alone, their legal title to recognition depends.” So far in the case, the trial court came to the conclusionthat evidence put forward by the Respondents regarding adoption of fourchildren in 375 years does not prove that the custom exist in the family ofSmt.
Laxmibai. Even the respondents did not mentioned this existing custom toShri Vasant Bhagwantrao Pandav. The documents submitted on record also did notcontain this existing custom, and no reference was made during the pleadingstoo. The SC evaluated the evidence and concluded that in the present case,although four children were adopted in 375 years withing the family, the samewas done in accordance to their convenience and wanted to prevent their familyproperty going into the hands of the outsider. There has been nothing relevantwhich can prove that the child from outside cannot be adopted. Thus, the SCheld that the findings of the appellate court on the issue, is not based on anyevidence and that the appellate court has committed a grave error in holdingthat the respondents have successfully proved the existence of such custom.This is not the case where there have been adequate judicial pronouncements onthe said issue previously, of which the court have taken judicial notice. Special customs are required strict proving in the court towhich the respondents failed to do the same.
Section 10 of the Hindu Adoptionand Maintenance Act, 1956, lays down that the child up to the age of 15 yearscan be adopted. In the present case, Raghunath was 8 years old, which issuccessfully in consonance with the said section. Section 11 prescribes, thatin case a female adopts the child, there should be the age gap of about 21 yearsbetween the female and the child. If, to apply these sections, in the presentcase, Raghunath was 8 years old at the time of adoption and Smt.
Laxmibai was70 years old, and in fact there was registered adoption deed, which presumes the validity of the adoption. UnderSection 16, it is presumed that the adoption in the present case happens to bevalid and in compliance with the Hindu Adoption and Maintenance Act, 1956unless such presumption is disproved. In the present case, the Respondentsnever attempted to rebut the presumption under Section 16. Therefore, therespondents failed to discharge the burden of rebuttal with respect to thepresumption of validity of adoption under Section 16 of Hindu Adoption andMaintenance Act, 1956.In Delta InternationalLimited vs. Shyam Sundar Ganeriwalla and Anr.4And Debi Prasad (dead) by L.
Rs. vs. Smt.Tribeni Devi,5the SC held that the intention of the parties is gathered only from thedocuments. Primarily, the intentions should be gathered from the meaning of thewords used in the documents. Obviously, this will not apply if it has provedthat the document is invalid or camouflage. If the wordings of the document isnot clear, the body language, surrounding circumstances and conducts of theparties has to be considered and to be kept in mind for ascertaining the realrelationship between the parties.
That the giving and receiving of the child isof utmost necessity to validate the adoption. The adopting father/mother needto ask the natural parents to give the child in adoption. Furthermore, in the case Mst.
Deu and Ors. Vs. Laxmi Narayan and Ors.6,theCourt specifically held that the registered documents (adoption deed) underSection 16 of Hindu Adoption and Maintenance Act, 1956 when produced in frontof the court and duly signed by the parties, are presumed to be valid documentsresulting in validation of the adoption.
However, this presumption will notapply if the said documents are disproved. In view of Section 16, it is openfor the party to attempt to disprove the deed of adoption by initiatingindependent proceedings. The trial court, in this regard, held that since the naturalparents of the adoptive child had signed along with seven witnesses, and not asexecutors, they would not create any doubt about the validity of the adoptionor render the said documents as void. This is because the natural parents havesufficient knowledge of the terms and nature of the document, immediately afterexecution. The appellate court gave the decision merely based on thetechnicality that only interested witnesses had been examined and the courtrejected the validity of the said document, believing that witnesses who wantedto give weight to their case, could not be relied upon.
The appellate court further held that the adoption deed hadneither been properly executed, nor satisfactorily proved, owing to the factthat the natural parents of the adopted child had not signed the adoption deedas executors but as witnesses, and that it could not be held to be a validdeed. Undoubtedly, a mere signature or thumb impression on a document is notadequate with respect to proving the contents of a document. However, in a casewhere the person who has given his son in adoption, appears in the witness boxand proves the validity of the said document, the court ought to have acceptedthe same, taking into consideration the presumption under Section 16, andvisualising the true purport of the document, without going into suchtechnicalities. This must be done particularly in view of the fact that theDefendants/Respondents have not made even a single attempt to challenge thevalidity of the said document. In fact, they have not referred to the same. TheSC had no hesitation in holding that the document valid, which was discarded bythe appellate courts.The appellant was 70 years old and hale & hearty.
Hence,there was no occasion for her to file Order XVIII Rule 16 of Code of CivilProcedure, which provides for taking evidence De Bene Esse for recording statement prior to the commencement ofthe trial. Mere death apprehension cannot be sufficient to examine the witnessimmediately. Moreover, it is the discretion of the court to conclude as towhether there is a sufficient cause or not to examine the witness immediately.
At the commencement of the trial, Smt. Laxmibai died andother witnesses entered witness box and were examined except Smt. Gopikabai.
Therefore,the question that arises is whether the court has to weigh or count theevidence and whether a deposition of witness is to be doubted because thewitness is a relative of the Plaintiff. The number of witnesses is not what the court looks at, butit focuses on the quality of the evidence that the witnesses provide, as thereis no limitation in the Indian Evidence Act regarding number of witnesses. Thetest is whether the evidence has ring of truth, is cogent, credible andtrustworthy or otherwise.7″The legal system has laid emphaisis onvalue provided by each witness, rather that the multiplicity or plurality ofwitnesses”8.There is no prohibition in law for the appellate court tore-appreciate the evidence where compelling and substantial reasons exist. Theevidences are required to be viewed collectively.
The statement of a witness isread as a whole because the reliance on a mere line in a statement of a witnessis not permissible. The judgment of a court can be tested on “touchstone of dispassionate judicialscrutiny based on a complete and comprehensive appreciation of all views of thecase, as well as on the quality and credibility of the evidence brought onrecord”. The High Court dealt with an issue and disbelieved thetestimony of said witness, observing as under: Apparently, the photographer didnot produce any record whatsoever other than the negative and the photographs.
Therefore, the lower appellate Court had rightly concluded that the photographscould not be taken as evidence as the same were not proved.The appellate court has made error by considering theirrelevant material, while the most relevant evidence, i.e., the adoptionceremony and the adoption deed, have been disregarded.
The validity of adoption deed is not disputed.What is disputed is that the natural parents of adoptive child who weredefinitely executing parties of the deed have signed as witnesses along withseven other witnesses. In such a situation, by gathering the intention of theparties and by reading the document as a whole and considering its claim, itcan be concluded that the adoption stood in accordance with the law.
Whensubstantial justice and technical considerations are up against each other, thecause of substantial justice deserves to be preferred. “The court in the large interest of justice may overlook a mereirregularity or a trivial breach of law for doing real and substantial justiceto the parties and pass orders which will best serve the interest of justice.”9Hence, the SC allowed the appeal by setting aside the judgement and decrees ofthe appellate court and re-establishing the decree of the trial court. CONCLUSIONTherefore, I support the judgement made by SC and the trialcourt, because all conditions required to fulfil a practice as custom failed. Therespondents were unable to establish the existence of an such custom thatprevails in the family (male child has tobe adopted from within the family) andnor they were able to disprove the validity and legality of the adoption deed. “Custom signify anyrule which, having been continuously and Uniformly observed for a long time,has obtained the force of law among Hindus in any local area, tribe, community,group or family.”101 The Hindu Adoption andMaintenance Act, 19562 MANU/SC/0099/2001; AIR2001 SC 9383 MANU/PR/0027/1872; 14 Moo.Ind.
App. 5704 MANU/SC/0258/1999; AIR1999 SC 26075 MANU/SC/0354/1970; AIR1970 SC 12866 MANU/SC/1351/1998; (1998)8 SCC 7017 Vadivelu Thevar Vs. Stateof Madras (MANU/SC/0039/1957); Namdeo vs. State of Maharashtra (AIR 2007 SC(Supp) 100); Kishan Chand vs. State of Haryana (JT 2013 (1) SC 222).8 Section 134 of IndianEvidence Act, 18729 Laxmibai (dead) thr.
L.Rs.vs. Bhagwantbuva (dead) thr. L.Rs. (MANU/SC/0072/2013); (www.manupatra.com).10 Pranav Gupta, Jurisprudence of Custom, Linkedin,(December 28, 2016), https://www.linkedin.com/pulse/jurisprudence-custom-pranav-gupta